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Daniel Buda’s opinion on proposal to amend Audio-Visual Media Service Directive

AVMSD currently covers broadcasters and certain on-demand video services and requires Member States to impose minimum rules for the regulation of audio-visual media services in specific coordinated fields. In doing so, it establishes the country of origin principle for the regulation of media services within its scope of application, with certain exceptions to avoid abuses. The new proposal seeks to bring video-sharing platforms within its scope of application, also imposing new obligations on on-demand services.

Rapporteur is of the opinion (de) that this proposal should also aim at ensuring effective enforcement of intellectual property rights. In this context, producing and promoting European works represents an important goal and cultural diversity in Europe could be safeguarded by ensuring a high level of copyright protection, guaranteeing authors’ and right holders’ fair remuneration as well as by encouraging investments in cultural and creative sectors.

In this sense, both the principle of territoriality and also the value created by exclusive rights are important elements for the success of the audio-visual sector, and for its financial sustainability, taking into account the small and medium-sized Member States’ characteristics and specific interests and also their cultural background and diversity.

Rapporteur stresses the need and importance of aligning linear and nonlinear audio-visual media services. The rights and obligations of the traditional services should be aligned with those of the new media players; this aspect should be fully incorporated in the review process of the AVMSD.

The market for audio-visual media services has evolved and there is a need for more flexibility and greater clarity with regard to, in particular, existing rules on increasing competitiveness, on providing a real level playing field for audio-visual commercial communications and on product placement and sponsorship. The emergence of new services, including without advertising, has led to a greater choice for viewers, who can easily switch to alternative offers.

Sponsorship represents an important means of financing audio-visual media services or programmes while promoting a legal or physical person’s name, trade mark, image, activities or products. As such, for sponsorship to constitute a valuable form of advertising technique for advertisers and audio-visual media service providers, sponsorship announcements can contain promotional references to the goods or services of the sponsor, while not being allowed to directly encourage the purchase of the goods and services.

Sponsorship announcements should continue to clearly inform the viewers of the existence of a sponsorship agreement. The content of sponsored programmes should not be influenced in such a way as to affect the audio-visual media service provider’s editorial independence.

Product placement should thus be allowed in all audio-visual media services, subject to exceptions, as it can create additional income for audio-visual media service providers. Even though the increase in the number of new services has led to a greater choice for viewers, it remains necessary to continue to protect the integrity of programmes and consumers from disproportionally frequent advertising and teleshopping spots.

It is important to underline the importance of maintaining the 30 min rule between advertising interruptions for cinematic works, as it would disproportionately affect the programmes’ integrity and does not correspond to the consumer habits, nor to an imperative need for the audio-visual media services. In preserving and promoting European production and cultural diversity, the principles of territoriality and of the country of origin should be respected.

“User-generated video” means an audio-visual work containing a set of moving images with or without sound constituting an individual item that is created and/or uploaded to a video-sharing platform by one or more users.

Allowing media groups to freely make announcement within all the broadcasters they own in connection to the programmes of the owned broadcasters would be detrimental to a fair competition in the sector as it would give an undue advantage to the dominant actors. It would also lead to an unnecessary increased in the amount of advertising as this announcement would be excluded from the quantitative rules.

Giving video-sharing platforms the ability to choose the Member State in which they are deemed to be established under this directive would be disproportionate as it would allow forum-shopping practices. The localisation of the majority workforce is a clear and reliable criteria to determine where the platform is established in the Union.

As video-sharing platforms usually target audiences in the entire Union, there could be disagreements between the Member States in the determination of the competent Member States for the purpose of this Directive. Therefore, the Commission should be able to act to determine the Member State having jurisdiction, as it does for the other audio-visual media services under Article 3.